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[2011] ZAFSHC 10
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Segalo v S (A298/2010) [2011] ZAFSHC 10 (27 January 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: A298/2010
In
the appeal between:
REITUMETSE LESLY
SEGALO
…...........................................
Appellant
and
THE STATE
…......................................................................
Respondent
_____________________________________________________
CORAM:
RAMPAI J
et
EBRAHIM J
JUDGMENT:
RAMPAI J
HEARD ON:
6
DECEMBER 2010
_____________________________________________________
DELIVERED ON:
27 JANUARY 2011
_____________________________________________________
[1] This is an appeal
against conviction only. The appellant was tried and convicted in the
Virginia district court on the 1
st
December 2008. He was
found guilty on a charge of theft. On the 9
th
February
2009 he was sentenced to six months correctional supervision.
Moreover, the court
a quo
directed that he must be placed
under maximum house arrest for a minimum period of three months.
[2] On the 12 February
2009 the appellant unsuccessfully applied for leave to appeal against
his conviction. He then petitioned
Musi JP for leave to appeal. On 26
October 2009 Van Zyl J and I considered his petition. He now comes on
appeal with the leave
granted by this court.
[3] The version of the
respondent was narrated by a certain Mr M P Mohlodi, a security guard
at Checkers. His evidence was that
on the 15 July 2008 he saw the
appellant inside the chain store, Checkers at Virginia. The appellant
first went to the stationery
section of the store where he took a box
of a mathematical set from the shelf and pocketed it. From there the
appellant proceeded
to the sweets section where he took a chocolate.
The appellant then approached him, in other words the security guard,
to enquire
about the price of the chocolate. He helped the appellant
by having the chocolate scanned.
[4] Having ascertained
the price of the chocolate the appellant walked away from him to the
pay-point where he handed the chocolate
to the cashier and paid for
it only. The appellant was on his way out when he, the security
guard, intercepted him between the
paypoint and the exit. The
appellant was in possession of two items only, to wit –
chocolate and mathematical set. He confronted
the appellant about the
unpaid for mathematical set. Then and there the appellant tendered
the chocolate back so he could recoup
the money in order to pay for
the set of mathematical instruments. This in a nutshell was the
sum-total of the case against the
appellant.
[5] The defence case was
narrated by two witnesses, namely: the appellant himself and Ms N S
Nyaredi, a shop assistant of Ekhaya
Stationers. The appellant’s
testimony was that he did not steal the set of mathematical
instruments from Checkers but rather
bought it from Ekhaya Stationers
on the 15
th
July 2008 shortly before he went to Checkers.
See composite exhibit “a” – top part - in
connection with Ekhaya
purchase dated the 15
th
July 2008.
[6] The appellant
testified further that, from Ekhaya Stationers, he proceeded to
Checkers where he bought adhesive glue and chocolate
– see
composite exhibit “a” – bottom part - in connection
with Checkers purchase. I cannot make out the
date of this document.
The exhibit is very faint.
[7] Ms Nyaredi’s
evidence was that the appellant bought a set of mathematical
instruments from her at Ekhaya Stationers on
the 15
th
July
2008. She showed a set to the court. That set, she said, was similar
to the set she sold to the appellant.
The trial magistrate
commented that the set was precisely the same as the set the
prosecutor alleged the appellant stole from Checkers.
The witness
confirmed that she was the author of the Ekhaya payment voucher –
exhibit “a”. She added that the
appellant payed R9.90 for
the Croxley set of mathematical
instruments
and that she
issued proof of such payment the next day at the request of the
appellant’s mother. She stated that Ekhaya Stationers
stocked
and offered such mathematical instruments for sale.
[8] The court
a quo
accepted the respondent’s version as true and rejected the
appellant’s version as false. The appellant was thus convicted
on the evidence of a singel witness.
[9] Mr Reyneke submitted,
on behalf of the appellant, that the court
a quo
erred in
convicting the appellant on the strength of the evidence of a single
witness which was not satisfactory and clear in all
material respects
and whose observation was questionable. See
R v MOKOENA
1932 OPD 79:
“
Though in
terms of section 284 of Act 31 of 1917 the evidence of a single
competent and credible witness is declared to be sufficient
for a
conviction, that section should only be relied on when the evidence
of the single witness is clear and satisfactory in every
material
respect, and the section ought not to be invoked where for instance
the witness … has not had proper opportunities
for
observation.”
[10] Mr Mohlodi was a
single witness. That being the case, his evidence had to be treated
with caution. At paragraph 58, line 24
– p59, line 7 the court
a quo
had this to say about this single witness:
“
Die getuie
vir die Staat kom in hierdie Hof ‘n goeie getuie voor, ‘n
geloofwaardige getuie, ‘n persoon wat in
sekuriteitsdoeleindes
aangestel is om die eiendom van Checkers te beskerm teen diewe. Hy
hou observasie en hy sê dat dit
om ongeveer 20 voor 5 was wat
hy u by die skryfbehoeftes afdeling waargeneem het. Dat hy gesien het
dat u ‘n wiskunde stel
neem en dat u slegs vir ‘n
sjokolade gaan betaal.”
[11] However credible a
witness may be, is not a decisive issue. In the instant case it is
important to determine how reliable were
the observations made by the
single witness. In this appeal we are called upon to take a fresh
look at the evidence of the respondent’s
sole witness. We have
to determine whether there was any reliable feature which so
adequately increased the confidence of the court
a quo
in the
single witness as to overcome the caution –
S v BANANA
2000 (2) SACR 1
(ZSC) at 8b – c:
“
If the court
is convinced beyond a reasonable doubt that the sole witness has
spoken the truth, it must convict, notwithstanding
that he was in
some respects unsatisfactory. See also S v Nathoo Supermarket (Pvt)
Ltd
1987 (2) ZLR 136
(S) at 138D - F.
Where the evidence of the single
witness is corroborated in any way which tends to indicate that the
whole story was not concocted,
the caution enjoined may be overcome
and acceptance facilitated. But corroboration is not essential.
Any
other feature which increases the confidence of the court in the
reliability of the single witness may also overcome the caution.
”
[12] The following
passages of the single witness’s testimony are significant to
the finding made by the magistrate as regards
the quality of the
observations made by the security guard:
“
Goed, u kan
maar voortgaan? --- Hy wat toe ‘n wiskundestel, hy kyk na dit
en hy sit dit toe in sy sak.”
(record: p11, line 10 –
11)
“
Meneer het u
gesien watter items hy voor betaal het? --- Hy het betaal vir ‘n
sjokolade.
Niks anders nie? --- Net dit.
U is doodseker? --- Ja.
(record: p17, line 1 –
5)
“
Ek het hier
‘n uitdruk en beskuldigde se instruksies is dat dit is wat hy
die betrokke dag gekoop het, dit maak melding van
‘n PS
caramilk wat ‘n sjokolade is inderdaad en dit maak melding van
‘n stafie gom. --- Ek kon sien dat hy besig
is om net vir die
sjokolade te betaal ek weet nie van die ander item nie.”
(record: p17, line 16 –
21)
“
ME
SIMPSON
Meneer ek stel dit aan u dat beskuldigde daardie betrokke dag ‘n
sjokolade, ‘n PS sjokolade gekoop het en ‘n
gomstafie.
--- Toe ek hom sien toe betaal hy net vir die sjokolade.”
(record: p18, line 13 –
16)
The passages are
characterised by some unsatisfactory features.
[13] The court
a quo
held that the security guard had properly observed the appellant
steal. The following comment is relevant here:
“
Ek gaan
hierdie getuienis nie weer in sy geheel herhaal nie, dit is nog vars
in ons geheue, dit kom in kort daarop neer dat u by
Checkers was,
dat
die sekuriteitsbeampte u waargeneem het by die skryfbehoefte
afdeling, vir u dopgehou het en dat u ‘n wiskundige stel
in u
regter broeksak plaas
,
na die sjokolade afdeling gaan, ‘n sjokolade neem en daarvoor
gaan betaal terwyl hy vir u buite die betaalpunt staan en
wag het
om
te kyk waarvoor u betaal, gesien het toe u vir die sjokolade betaal
het
,
u voorgekeer het en u na die stoorkamer geneem het, waar hy vir u
gevra het om die wiskundige stel uit te haal. Die polisie is
ontbied
en u is aangekla.”
(record: p58, line 8 –
18)
[14] The following
further comment by the court
a quo
about the security guard’s
observation is significant:
“
Hy hou
observasie
en hy sê dat dit om ongeveer 20 oor 5 was wat hy u by die
skryfbehoeftes afdeling waargeneem het.
Dat
hy gesien het dat u ‘n wiskunde stel neem en dat u
slegs
vir
‘n sjokolade gaan betaal.
”
(record: p59, line 3 –
7)
[15] Now, the state could
readily have called the cashier concerned to prove that the appellant
produced and paid for PS caramilk
chocolate only. The security guard
or the investigation officer or the shop manager should readily have
appreciated the importance
of the invoice relative to the appellant’s
transaction. One would have expected that a duplicate of such invoice
would have
been securely preserved for later use as evidence for the
prosecution. Since the respondent did not tender the oral evidence of
the cashier or exhibit the documentary evidence of the transaction
there was no corroborative evidence for the security guard as
to
precisely what the appellant paid for.
[16] The court
a quo
accepted that exhibit “a” (bottom part) was a genuine
duplicate of the invoice issued by the cashier employed by Checkers
and handed to the appellant on the 15
th
July 2008 as proof
of payment.
“
As gekyk
word na die Checkers
BEWYSSTUK
“B”
wat by die Hof ingehandig is,
dan
is daar 2 artikels gekoop
ter waarde van R6,99, R9,98 en R10,05 is kleingeld ontvang.”
(record: p 59, line 8 –
9)
Exhibit “B”
is an assessment report – p 78 of the record. See p77 of the
record for Checkers invoice.
It must be kept in mind
that this exhibit forms part of the defence case and not of the
prosecution case. The exhibit verified that
two articles were bought.
The respective prices were also shown. The goods were apparently
described as Pritt
glue
and PS caramilk
chocolate
.
[17] This documentary
evidence materially negatived the version of the single witness that
the appellant paid for one item only,
the chocolate; that only two
items were subsequently found in the appellant’s possession and
that the appellant tendered
to give the chocolate back in order to
pay for only one stolen item, the mathematical set. We now know that
besides the chocolate
and the set the appellant also had glue in his
possession. Therefore he had three articles at the time he was
searched in the storeroom.
If the appellant had stolen two articles,
a tube of glue and a box of mathematical instruments from the
stationery shelf in the
chain store it seems unlikely that he would
have made a proposal which, if accepted, would only have partially
solved his problem
in respect of the stolen set but not the stolen
glue.
[18] The difficulty I
have is this: If the observations made by the security guard not only
at the paypoint where the payment was
made but also in the store-room
where the appellant was searched is demonstrated to have been clearly
wrong, what redeeming feature
could have instilled confidence in the
mind of the trial court about the reliability of the observation this
single witness had
made earlier at the stationery shelf?
MEYER
v DIRECTOR OF PUBLIC PROSECUTION (KZN)
2006 (4) All SA 598
(N) at 606c – d:
“
In
the context of deciding whether it was possible for Steytler to
falsely implicate the appellant, it is apparent that it would
be the
simplest of matters for Steytler to allege that money passed hands at
these meetings.
The greatest caution must
be exercised in evaluating the evidence of Steylter.
He is a
single witness … and for reliance to be placed upon his
evidence it has to be clear and satisfactory in every material
respect. In addition corroboration implicating the appellant in the
commission of the offence must be sought in order to reduce
the risk
of a wrong conviction.
R v Mokoena
1932
OPD 79
at 80; and
S v Hlapezula and others
1965 (4) SA 439
(A) at 440D–H.”
[19] The exhibit strongly
militates against any contention or finding that the evidence of the
respondent’s single witness
was reliably clear and satisfactory
in all material respects. The observation made on three different
occasions was, in my view,
so materially unclear, unsatisfactory and
unreliable as to warrant some corroborative safeguards to ensure that
a wrong conviction
did not follow a wrong observation. There were no
reliable features in the evidence presented by the respondent to
overcome the
caution the court
a quo
was required to exercise
in analysing and assessing all the elements indicative of the guilt
of the appellant vis-a-vis the elements
indicative of the appellant’s
innocence. The judgment extolled the inherent virtues of the
prosecution case and levelled
no critique about its inherent
weaknesses. The approach adopted was incorrect.
S v CHABALALA
2003 (1) SACR 134
(SCA) at 140a – b.
“
The result
may prove that one scrap of evidence or one defect in the case for
either party (such as the failure to call a material
witness
concerning an identity parade) was decisive but that can only be an
ex post facto determination and a trial court (and
counsel) should
avoid the temptation to latch on to one (apparently) obvious aspect
without assessing it in the context of the
full picture presented in
evidence. Once that approach is applied to the evidence in the
present matter the solution becomes clear.”
[18] Mr Hoffman, counsel
for the respondent, correctly conceded that the court
a quo
did not treat the evidence of the single witness with the necessary
measure of caution applicable to the testimony of a single
witness.
The main ground of the appeal and indeed of the cornerstone of Mr
Reyneke’s argument on behalf of the appellant
was that the
court
a quo
erred by finding that the respondent’s
single witness was a credible witness without paying proper attention
to the applicable
cautionary rule. In my view there was substance in
the two submissions.
[19] The charge was that
the stolen 11 piece set of mathematical instruments was the property
of Checkers. Therefore Checkers was
the alleged owner thereof. This
was an element of the charge. Besides the evidence of the security
guard there was no other evidence
tendered by the respondent to
establish ownership of the set allegedly stolen from Checkers. The
respondent’s witness did
not know whether the barcode
6001396037148 on the article was exclusively used to brand such items
or stock sold by Ekhaya Stationers.
Apparently the respondent’s
witness did not have the article scanned to determined whether it
formed part and parcel of such
items as were stocked by Checkers. He
could easily have done so as he had done with the chocolate. The
scanning would have shown
whether indeed the set was pre-owned by
Checkers or Ekhaya Stationers. As regards the element of ownership
the court
a quo
commented as follows:
“
Dit word
gesê Checkers kan nie sê dat dit hulle eiendom is nie,
slegs as gevolg van ‘n kode, net so min kan Ikaia
(sic)
Skryfbehoeftes vandag sê dat dit hulle eiendom is want die
prysetiket wat op alle behoeftes in daardie winkel behoort,
waar ons
inspeksie gehou het, verskyn glad nie op dié wiskundige stel
wat in u besit gevind is nie.”
(Record, p61, reël 3
– 8)
[20] The aforesaid
quotation creates the unfortunate impression that there was a duty
which rested on the appellant to prove that
immediately before the
incident the article was owned by Ekhaya Stationers. Of course he was
not required to do so. It was incumbent
not on the accused but on the
respondent to prove beyond reasonable doubt that immediately before
the incident the article was
owned by Checkers. The respondent failed
to discharge that requisite onus.
[21] It must also be
borne in mind that the incident happened on the 15
th
July
2008 and that the case was tried on the 1
st
December 2008,
some 18 weeks later. I am uncertain as to when an inspection
in
loco,
which the trial magistrate referred to, took place. However
my informed guess is that such an inspection was not before December
1, 2008. Therefore any comparison between the price tags of the goods
found in the stationery shop during such an inspection and
the price
tag on the article sold to the appellant at least 18 weeks before the
inspection was not a very helpful exercise. The
appellant was not
required to convince the court of the truth of his version –
R
v DIFFORD
1937 AD 370
on 373.
[22] The defence witness
materially corroborated the evidence of the appellant. She confirmed
that identical Croxley mathematical
instruments were sold at Ekhaya
Stationers. (record: p44, line 14); that she immediately knew what
the appellant’s mother
was talking about when she came in the
next day (record: p46, line 19); and that she was certain the
appellant bought the set in
dispute from her (record: p47, line 22 –
23):
“
--- Al wat
ek weet is, ons koop die stel van die vervaardigers af, ek weet ook
nie wat is die kode
maar
ek weet beskuldigde het ‘n stel gekoop by ons.
”
[23] She even vowed that
the appellant bought the article from her (record: p49, line 11):
“
--- Ek sweer
hy het dit by my gekoop.”
There was, therefore,
some serious doubt concerning ownership of the alleged stolen article
and precisely where the appellant acquired
possession thereof.
[24] On the facts it
cannot objectively be concluded that the version of the defence,
notwithstanding its unsatisfactory aspects
as correctly outlined by
the court
a quo,
was not reasonably or possibly true. To the
extent that the court
a quo
found otherwise it misdirected
itself in my respectful view. Since the misdirection was material, I
am inclined to interfere with
the resultant conviction by upholding
the appeal.
[25] Before I propose the
order, I want to make some brief comments. Mr Reyneke still relied on
the decision in
S v KUBEKA
1982 (1) SA 534
(W) where
Solomon AJ endeavoured to reformulate the test to be adopted in
dealing with the version of an accused person. The test
so
reformulated was criticised by Nugent J, as he then was, and finally
overruled in
S v VAN ASWEGEN
2001 (2) SACR 97
(SCA) on
100 (para 7 – 8).
[26] I propose the
following order:
25.1 The appeal succeeds.
25.2 The conviction and
sentence are set aside.
______________
M. H. RAMPAI, J
I concur.
______________
S. EBRAHIM, J
On behalf of appellant:
Attorney J. D. Reyneke
Instructed by:
Bloemfontein Justice
Centre
BLOEMFONTEIN
On behalf of respondent:
Adv. R. Hoffmann Instructed by:
The Director: Public
Prosecutions
BLOEMFONTEIN
/eb